State v. Smallwood, 77097

Decision Date06 March 1998
Docket NumberNo. 77097,77097
PartiesSTATE of Kansas, Appellee, v. Aaron SMALLWOOD, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. A four-factor case-by-case approach is used in determining whether a defendant has been deprived of his or her constitutional right to a speedy trial. The factors are: length of delay, reason for the delay, the defendant's assertion of his or her right, and prejudice to the defendant.

2. Three factors which may demonstrate the defendant has been prejudiced by a delay of trial are oppressive pretrial incarceration; anxiety and concern of the accused; and, most important, impairment of the defense.

3. Two questions must be considered in testing whether there has been an impermissible encroachment on due process rights of the accused by a delay in charging the crime or prosecutorial vindictiveness: (1) Has the delay prejudiced the accused in his ability to defend himself, and (2) was the delay a tactical device to gain advantage over him? Affirmative answers to both questions need be supplied before it may be said that criminal charges should be dismissed.

4. An expert's opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. An expert witness may not pass on the weight or credibility of evidence.

5. Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

6. The Double Jeopardy Clause shields persons from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

7. The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve. In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide. In determining whether an underlying felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination.

8. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule. A single assaultive incident of abuse of a child (K.S.A. 21-3609) which results in the death of the child merges with the killing and constitutes only one offense.

9. The legislature's statement in K.S.A. 21-3436(a) that certain felonies shall be deemed an inherently dangerous felony whether such felony is so distinct from the homicide alleged, shows that the legislature intended that anyone who causes the death of a child while committing the act of abuse of a 10. Convictions for first-degree felony murder and abuse of a child violate the constitutional prohibition against double jeopardy.

child to be guilty of the crime of first-degree felony murder.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Stephen D. Maxwell, Assistant Attorney General, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief, for appellee.

LOCKETT, Justice:

Defendant appeals his convictions for felony murder, K.S.A. 21-3401, and for two counts of child abuse, K.S.A. 21-3609, claiming the trial court (1) violated his statutory and constitutional rights to speedy trial; (2) erroneously admitted testimony from the pathologist and gruesome autopsy photographs; (3) erroneously failed to give lesser included offense instructions; and (4) violated his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendant also claims there was insufficient evidence to support his convictions and that his convictions for child abuse felony murder and child abuse violate the prohibition against double jeopardy.

Kaine M. Smallwood, the son of Aaron and Amber Smallwood, was born on July 22, 1993 in Coffeyville, Kansas. On August 23, 1993, Kaine was admitted to a local hospital because he had stopped breathing. A chest x-ray revealed a fractured collarbone. Kaine was transported to a Wichita hospital and admitted to intensive care. A Cat scan revealed a hemorrhage between Kaine's skull and brain and two fractured ribs. One of Kaine's physicians stated that the brain injury had occurred immediately before Kaine stopped breathing. A report was referred to a child protection team for evaluation of possible child abuse. The report was referred to SRS, but never investigated.

On September 7, 1993, Kaine was again taken to the Coffeyville hospital emergency room, then flown by helicopter to Wichita. Examination revealed an inability to breathe, external bruises on his left ear and left temple, and a hemorrhage outside the brain, an injury considered consistent with child abuse. The treating physician believed that Kaine's inability to breathe had been immediately preceded by external trauma. Kaine never recovered from this injury and died on November 4, 1993, at the age of 3 1/2 months.

Aaron testified at trial that he had placed Kaine on a couch while he went to the bathroom to get a washcloth and heard Kaine fall off the couch. When he went to pick up Kaine, the baby was not breathing. Additional facts will be stated as necessary for determination of the issues.

A. Case 93-CR-288 C

On December 6, 1993, Smallwood was charged with one count of second-degree murder, K.S.A. 21-3402(b), in Case 93-CR-288 C. Smallwood waived preliminary hearing, was arraigned, and pled not guilty on January 14, 1994. At that arraignment, the following colloquy occurred.

"COURT: Mr. Smallwood entered a plea of guilty and we need to set this within 180 days, and it's going to take three days. Sometime in July.

"MRS. EVERITT [Prosecutor]: Only got until July 15.

"MR. EASTMAN [Defense counsel]: We'd waive time to fit in with the court docket. Be July 10 or something, but we'd waive time.

"COURT: You understand we are required, Mr. Smallwood, to bring you to trial within 180 days after you're arraigned; and if we don't do that, then you can't be charged for anything. It's my understanding you're giving up that 180-day time at this time and going to agree to whatever date we set it?

"MR. EASTMAN: Yes, sir.

"COURT: Okay. Let's do it what time, August 1?

"MRS. EVERITT: Well, what do you want?

"MR. EASTMAN: That's fine.

"COURT: You're probably going on vacation too, Mr. Smallwood.

"DEFENDANT SMALLWOOD: No, I got no plans for vacation.

"MR. EASTMAN: August, I think, would be fine.

"COURT: August 1.

"MR. KRITZ: That's fine.

"COURT: Because you got a two-week trial in July, so I mean that shoots July. Okay. First day of August, 1994, and the defendant has waived the 180-day speedy trial provision.

"MR. EASTMAN: Yes, sir. We will do it in writing if you want us to.

"COURT: Please do that. Your bond will continue. You stay in touch with Mr. Eastman, and we will see you in August, if not sooner, okay?

"DEFENDANT SMALLWOOD: Okay." (Emphasis added.)

The district judge set trial for August 1, 1994. On July 26, 1994, the judge granted Smallwood's motion to continue trial to December 5, 1994. (It appears from the record that both attorneys agreed to the extension of trial date and agreed that the delay would be charged to the defendant.) The case was set for trial as case # 2 for December 5, 1994. On December 5, 1994, case # 1 went to trial. Neither party in the Smallwood case appeared, and the case was continued to be reset later by the district court. The court reset the case for trial as case # 2 on January 23, 1995, with a backup date of February 13, 1995. The # 1 case was tried on January 23, 1995. On February 13, 1995, neither party appeared for trial. No order for continuance was filed. The defendant did not object to the continuances or resettings of the trial date, nor did he withdraw his speedy trial waiver.

At the end of 1994, the assistant county attorney handling the case resigned. Prior to March 2, 1995, the Montgomery County Attorney, Ann Smith, requested that the state attorney general handle the case. In a March 2, 1995, letter to Patrick Peters, deputy attorney general, Ms. Smith stated that the file indicated a waiver of defendant's speedy trial rights and the case had been reset for trial May 8, 1995. On March 6, 1995, the district judge wrote a letter to all counsel, setting the trial on May 8, 1995. Defendant did not object.

By March 14, 1995, the defendant was aware that the attorney general was prosecuting the case. The attorney general believed that the case was undercharged. The prosecutor set a deadline in the second half of March for Smallwood to plead guilty to second-degree murder or be charged with first-degree child abuse felony murder.

On May 8, 1995, the defendant and his new attorney unexpectedly appeared in the courthouse. During a conversation in the hallway, the district judge was informed that they were ready for trial and Smallwood was asserting his right to speedy trial. The district judge said that he...

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  • State v. Shockley
    • United States
    • Kansas Supreme Court
    • September 10, 2021
    ...and allow trial to be set "down the road aways" to give his new counsel additional time to prepare for trial); State v. Smallwood , 264 Kan. 69, 72, 955 P.2d 1209 (1998) (defendant orally waived his right to speedy trial to fit trial in with court docket, agreeing to "whatever date [the cou......
  • State v. Heath
    • United States
    • Kansas Supreme Court
    • April 17, 1998
    ...under the facts of the case, necessarily merges into the crime of murder. We have recently addressed this question in State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998). In Smallwood, we concluded that where only one act forms the basis for both the abuse of a child charge and the homici......
  • Clark v. State
    • United States
    • Maryland Court of Appeals
    • June 26, 2001
    ...Idaho v. Murphy, 99 Idaho 511, 584 P.2d 1236, 1239 (1978); Iowa v. Cuevas, 282 N.W.2d 74, 77 (1979); Kansas v. Smallwood, 264 Kan. 69, 955 P.2d 1209, 1218 (1998); Kirk v. Commonwealth of Kentucky, 6 S.W.3d 823, 826-27 (1999); De La Beckwith v. Mississippi, 707 So.2d 547, 568 (1997), cert. d......
  • State v. Dupree
    • United States
    • Kansas Supreme Court
    • April 8, 2016
    ...statute. A defendant can assert a speedy trial claim in two ways—one statutory and one constitutional. See, e.g., State v. Smallwood, 264 Kan. 69, 74–76, 955 P.2d 1209 (1998) (analyzing a statutory speedy trial challenge differently than a constitutional challenge). Here, Dupree only presen......
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1 books & journal articles
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 90-6, December 2021
    • Invalid date
    ...Supp. 22-3402(a). Unlike City of Shawnee v. Patch, 33 Kan.App.2d 560 (2005), State v. Bloom, 273 Kan. 291 (2002), and State v. Smallwood, 264 Kan. 69 (1998), a new trial date was set after the court accepted Shockley's waiver of rights to a speedy trial. The law presumes a defendant's waive......

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